It's the age-old story: an employee goes on FMLA leave, and the employer discovers that the employee has serious performance problems. More often than not, the employer makes the discovery when it hires a temporary employee to perform the employee's duties in her absence.

A recent case tackled this precise scenario. In Cracco v. Vitran Express, the United States Court of Appeals for the Seventh Circuit held that an employer that terminated an employee for performance problems that it discovered while the employee was on FMLA leave did not violate the FMLA. The employee, who was a manager for a trucking company, requested and was granted FMLA leave for his own serious health condition. During his absence, the company hired temporary replacements, who uncovered numerous problems in the manager's department. A subsequent investigation revealed that the manager had deliberately disguised late and damaged deliveries. On the day that the manager was to return from FMLA leave, the company terminated his employment.

The manager sued the company, alleging retaliation and interference with his FMLA rights. The district court granted the company's motion for summary judgment. The Seventh Circuit affirmed. With respect to the retaliation claim, the court held that there was no causal link between the request for leave and the termination. Moreover, the court explained that the fact that the leave permitted the employer to discover the manager's performance deficiencies could not be a bar to its ability to terminate the manager. The court also held that the manager failed to establish a prima facie case under the indirect method of establishing retaliation, because he failed to prove that he met his employer's legitimate job expectations at the time he was terminated. As to the interference claim, the court explained that an employee is not entitled to reinstatement if the employer can present evidence to show that the the employee would not have been entitled to his position even if he had not taken leave.

In a recent blog, I discussed the circumstances in which an employer can terminate an employee who has requested FMLA leave. The Cracco decision reinforces, in particular, the fact that documentation is key to defending the termination of an employee who is on FMLA leave. The Seventh Circuit relied heavily on the fact that the company presented sufficient evidence, after a thorough investigation, of the manager's misconduct. Employers would be wise to ensure that their reasoning for terminating an employee on FMLA leave, and their documentation of the basis for the decision, are iron-clad.

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